European Court Of Human Rights: No, Copyright Does Not Automatically Trump Freedom Of Expression

from the well,-that's-a-relief dept

As many know, copyright had its origins in censorship and control. But over the last few hundred years, that fact has been obscured by the rise of the powerful publishing industry and the great works it has helped bring to the public. More recently, though, laws and treaties like SOPA and ACTA have represented a return to the roots of copyright, posing very real threats to what can be said online. That's not because their intent was necessarily to crimp freedom of expression, but as a knock-on effect of turning risk-averse ISPs into the copyright industry's private police force.

And so there's a growing tension between copyright law that seeks to limit unauthorized use of works on the one hand, and freedom of expression that aims to allow the maximum scope for creativity on the other. The question then becomes: which should have precedence when they clash? The European Court of Human Rights was asked just this question, and came up with the following important ruling:

For the first time in a judgment on the merits, the European Court of Human Rights has clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention [on Human Rights]. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person's or an organisation's freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim.

However, it's worth noting that the same blog post points out:

Due to the important wide margin of appreciation available to the national authorities in this particular case, the impact of Article 10 however is very modest and minimal.

That's because there are many other factors that will need to be taken in to account for particular cases, as the rest of the blog post goes on to explore at some length. For example, one issue is whether the copyright infringement in question was for commercial or non-commercial purposes: the latter would be likely to benefit from the current ruling, while the former probably would not. Nonetheless, an important principle has been enunciated by a senior European court -- one that both reflects the evolving views on this subject, and that is also likely to help shape future decisions in this contested area.

Re: Re: Re:

You are aware that it's only the productions that "lost money", the studios themselves are highly profitable. Of course they have to pay off politicians and regulators to prevent everyone from knowing how they manage to keep the profits for themselves.

"The Court is of the opinion that in this case a wide margin of appreciation is to be given to the domestic authorities,
as the publication of the pictures of models at a fashion show and the fashion clothing shown on the catwalk in Paris was not related to an issue of general interest for society and concerned rather a kind of “commercial speech”. "

"The member states are furthermore in a position to balance conflicting rights and interests, such as the right of freedom of expression under Article 10 of the Convention with the right of property as protected by Article 1 of the First protocol to the Convention."
(And when it comes to art: article 27, clause 2 of the Convention. My addition)

"The European Court consequently refers to the Paris Court of Appeal’s finding that the applicants had reproduced and represented the pictures without authorisation by the
copyright holders, hence infringing the rights of intellectual property of others."

"In these circumstances and taking into account the particular important margin of appreciation of the national authorities, the Court concludes unanimously that there is no violation of Article 10 of the Convention."

"Secondly the Court’s judgment is a clear illustration of the difference between, on the one hand, expression and content contributing to an issue of public debate or a debate of general interest for society, and on the other hand, “commercial speech”. Speech, messages, pictures
and content which are merely money driven do not enjoy the added value of the protection guaranteed by Article 10 of the Convention. In the Court’s view, the margin of appreciation in such circumstances is a very wide one, even in a case where the interference by the authorities takes the form of a criminal conviction or a very high award of damages, both ‘sanctions’ with a risk of having a chilling effect."

So filesharing copyrighted movies, music, books and software is not protected by article 10. Sorry.

but, as and when it suits, it will be ignored, twisted or changed so as to benefit the entertainment industries over the interests of the public as many times as possible. in other words, when the judge is 'bought' the ruling wont apply!

Uh, freedom of expression has nothing to do with copyright

Let's put it a different way: if you're copying someone else's work, you're not expressing yourself. You're doing it wrong.

It cracks me up to watch the lazy-ass couch potatoes around here pass the time as the torrents download coming up with looney claims that they are somehow expressing themselves by posting a torrent link.

Nope. The film maker expressed him or herself. The actors expressed themselves. The screen writer did it. But posting a URL to someone's pirated film is not a form of expression.

Re: Re: Uh, freedom of expression has nothing to do with copyright

Now, they can just repeat it word for word.

Humans != companies. Since people often buy books from companies, legalising non-commercial distribution won't make a significant difference.

When it comes to computers, that's a different story. Computers are capable of producing infinite copies. Copyright is legal censorship of that ability. Publishers and governments need to work out new ways for people to *want to pay* creative authors, without removing that freedom.

Re: Uh, freedom of expression has nothing to do with copyright

But posting a URL to someone's pirated film is not a form of expression

Arguably, it is, but since you have used an example of something that is not a copyright violation (posting a URL is not copying anything), I am not sure what you are trying to point out.

Copyright can strangle expression pretty easily. Is a remix not a form of expression? What about including an image of a part of a cartoon in a discussion board talking about it? Did Disney not "express" themselves when they produced cartoons retelling public domain stories?

Re: Re: Uh, freedom of expression has nothing to do with copyright

Re: Uh, freedom of expression has nothing to do with copyright

Except that copying and remixing is expressing yourself. It's just that you can't take your head out of your MAFIAA's bosses arses and look at the bigger picture outside of pure file sharing scope (which is socially accepted and not nearly the devil your bosses tend to paint by the way).

Re: Uh, freedom of expression has nothing to do with copyright

It cracks me up to watch the lazy-ass couch potatoes around here pass the time as the torrents download coming up with looney claims that they are somehow expressing themselves by posting a torrent link.

Re: Uh, freedom of expression has nothing to do with copyright

I am glad to hear you say that. Since you like the moral high ground and reasonably recognize that everything you say is derivative of someone else's absurd positions, you're going to cease to troll here because you're not participating in a valid form of expression, according to your own standards.

Re: Uh, freedom of expression has nothing to do with copyright

Let's put it a different way: if you're copying someone else's work, you're not expressing yourself. You're doing it wrong.

Ditto, as it were, can be a very powerful form of expression. Ever see the ending of Spartacus? Ever hear about the tradition of samizdat in the Soviet Bloc?

Plus, of course, if you were right, I would not have a right to quote you, I would not have a right to stand on the street corner and read Shakespeare out loud, I would not have a right to reprint and thus help preserve old books, and I would not even have a right to tape the evening news so that I could watch it later.

Free speech encompasses verbatim repetition of existing speech; there is no originality requirement. I would've thought you knew that: your posts are usually all the same, with nary an original thought expressed.

Re: Re: Uh, freedom of expression has nothing to do with copyright

No, copyright did *not* have its roots in censorship

Can we please stop repeating this ridiculous lie that copyright began as a system of censorship? First, because it's not true, and second because it weakens your case when you push this story.

As the linked article clearly states, systems of censorship existed before copyright law, but "The Statute of Anne [the first copyright law] ended the old system whereby only literature that met the censorship standards administered by the booksellers could appear in print." (emphasis added)

In other words, copyright was not a system of censorship; it was a system that did away with it! If you want to know what it was really about, look at the preamble to the Statute of Anne:

Whereas Printers, Booksellers, and other
Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books; May it please Your Majesty, that it may be Enacted...

The language may be a bit archaic, but even so it's written in utter clarity. When the old censorship regime ended, printers started publishing whatever they wanted, just because they could, with no compensation to the authors. When this became a big enough problem, Parliament came up with a law to put a stop to it by giving authors the right to control the publication of their works.

This is a much more powerful narrative, and it has the additional advantage of being true: copyright was created for the explicit purpose of preventing publishers from using expensive modern technology to exploit and abuse people!

Why is this a more powerful narrative? Because the DMCA was created for the explicit purpose of enabling publishers to use expensive modern technology to exploit and abuse people. If we try and tell people "oh, copyright is an evil tool of censorship and we need to do away with it," no one will listen, because it's silly. But if we say "copyright was created for a good purpose, but it's been twisted 180 degrees and today serves to do the exact opposite of what it was intended for," that makes sense. It resonates with people. We see examples of that all the time in the world around us.

Re: Re: No, copyright did *not* have its roots in censorship

Well, but that is not the issue at hand. Mason is right, that Glynn is pushing the angle a bit too far. If anything, copyright was the final end to the nations rulers complete control of publishing. Publishing was "set free" to those with the creativity. Unfortunately we have seen a larger and larger divide between publishing and creating which is what is making copyright a problem today. That publishing has become a possibility for everyone is just making that divide even bigger, with the publishers clinging to their haydays and artists slowly but surely seeing the possibilities in the internet as opposed to the piracy problem pushed by publishers!

I think some politicians of liberal (the real liberal!) and left-leaning observance are starting to see this in several countries, which is why copyright law is not getting pushed as hard. ACTA pushed all but the conservative european politicians away from the neo-protectionism of copyright. Now we only need to spread the understanding far enough to the right that the american far left starts to catch it!

Re: No, copyright did *not* have its roots in censorship

You see while the initial intention of the Government was just to protect the authors with the printing press I suspect Glyn is talking about other sectors such as the cloth and cloth patterns industry for instance (they wanted to prevent the cheaper knock offs). So in this sense it was a censorship tool, a CONTROL tool.

But if we say "copyright was created for a good purpose, but it's been twisted 180 degrees and today serves to do the exact opposite of what it was intended for," that makes sense. It resonates with people. We see examples of that all the time in the world around us.

I totally agree. However we must not forget that copyright would never see the light of day if not for the push of the powerful industries earlier in history.

Re: No, copyright did *not* have its roots in censorship

So can we please drop the tired old lie already?

I'll admit that simply stating that copyright began as a censorship system is an oversimpifcation - but it is not a lie.

Firstly, copyright existed before the statute of Anne - and as such it was at least partly motivated by censorship. Certainly when the stationers company applied for the renewal of their privileges in the 1640s they offered censorship as one benefit of such renewal.

In fact it seems that all the way through the early history, from the granting of the stationers' charter to the statute of Anne the stationers operated a censorship mechanism as part of their internal copyright system. To be fair however it is also true that the state seldom made direct use of what the stationers' company offered.

Nonetheless it is also fair to say that in the early days the stationers used censorship as a selling point for their (copyright) monopoly.

By the 1690s however, when the state had allowed their monopoly to expire (and yes there was a short period between 1688 and 1710 when no copyright existed in Britain and authors still got paid) the stationers changed their tune and began to sell the idea of copyright for the benefit of the "poor starving author" (a theme which you will still see today - although the author may be replaced by a corn farmer!).

Your quote "Whereas Printers, Booksellers, and other
Persons, have of late frequently taken..." is simply an extract from the stationers publicity material and bears as much relation to reality as the accounts of "Avatar".

The reality is this.

There exists (and has existed since the mid 16th century) a commercial cartel that benefits from the restrictions on copying that began as the stationers' charter and now exists in the form of copyright. This group has consistently lobbied for the retention, extension and expansion of these restrictions and is prepared to use whatever argument chimes with the mores of the day. In the political climate of the 16th and early 17th centuries censorship was a good line to pursue, later the well being of authors was better for them. However this has never been anything more than lobbying. Their real interest has always been self interest. So it may be that censorship was never the real motivation for copyright - but then the authors' well being never was either!

Re: No, copyright did *not* have its roots in censorship

The point, you missed it. Copyright was around before the Statue of Anne. And prior to this, the purpose of copyright was censorship, just as you state. The printing guilds held the exclusive right to copy and publish material. Materials printed in this way were, among other less credible means, acquired by buying the materials from the authors, a practice still fairly common today.

You are attempting to redefine "copyright" so narrowly that it excludes the evidence that contradicts your predetermined conclusion. The Statue of Anne was a major revision of copyright law; it was by no means the first copyright law.

Re: Re: No, copyright did *not* have its roots in censorship

I'm not "redefining" copyright at all. I'm using the actual definition of it, which is that the author(s) of a work has a legal right to some degree of control over its reproduction. Take away the author's right, and it is not copyright, no matter how much you may wish to rewrite history.

Re: Re: Re: No, copyright did *not* have its roots in censorship

The actual definition is right there in the word, it's the right to make copies. Monopolies over that right existed long before the Statute of Anne and that's what we have today, monopoly rights to making copies. If copyrights cease to be copyrights when the right isn't held by the author then what we call 'copyrights' today aren't really copyrights under your definition either.

Re: Re: Re: Re: No, copyright did *not* have its roots in censorship

You can also look in modern copyright law. Even in modern law copyright is primarily, according to its legal definition, the rights of reproduction, publication, etc. It is literally, in both linguistic and legal terms, the right to copy (etc.). The Statute of Anne (I was horrified when I got home from work to find that I'd mistyped "Statute" twice) merely allowed the author to hold copyright to his work, while previously only the printing guilds could hold copyright on a work (and it's worth noting that authors who are members of the printing guilds held the copyright on their own works).

Attempting to define copyright any other way is an attempt to "win" an argument by deception. And stating that the Statute of Anne was the first copyright law is an attempt to rewrite history. These attempts have been denied.

Re: Re: Re: No, copyright did *not* have its roots in censorship

I'm not "redefining" copyright at all. I'm using the actual definition of it, which is that the author(s) of a work has a legal right to some degree of control over its reproduction. Take away the author's right, and it is not copyright, no matter how much you may wish to rewrite history.

The stationers already called their internal system copyright and operated it in a way that provided a censorship function. This is not a point of debate - even the present day stationers company admit that this was the case and call the system that operated in the 16th and 17th centuries "copyright" If you don't believe me you can look at their own website.

As in all good business, there was something in it for both sides: the Crown and The Stationers’ Company. While the Company feared the opportunity for piracy that mass production offered, the Charter, in effect, provided the Crown with an agent, as Mary realised that previous attempts to impose royal control on every new publication had failed. The Company was expected to find a way to stem the constant flow of seditious and heretical books.

and

from the 1560s, therefore, a form of copyright could be secured by two methods: by royal Letters Patent; or by our Guild rule that made it an offence not to present to the Wardens – to put on record, as in the text ‘Entered at Stationers’ Hall’ – every publication not protected by royal privilege.

Re: No, copyright did *not* have its roots in censorship

So can we please drop the tired old lie already?

We'll drop the tired old lie when it stops being a lie.

When the old censorship regime died along with the Stationer's Company monopoly in the late 1600's, printing and reading and knowledge experienced a massive renaissance: and authors still got paid. They did not get paid for every use, just as they did not get paid for every use in America even after the Statute was enacted, but writing was in no way in danger. Instead, the monopolists whose (incredibly lucrative) regime had ended were the ones at risk, and accordingly they reframed their concerns into a new format with which they could regain a large part of their lost control.

Re: No, copyright did *not* have its roots in censorship

Can we please stop repeating this ridiculous lie that copyright began as a system of censorship?

Oh, it's quite true. Originally there was a copyright (ie a right to prohibit others from printing copies) which was vested IIRC in whichever member of the Stationers' guild claimed the work first. The author was not consulted, had no rights, and need not have been paid. Of course, the printer needed to have a manuscript or something to work from, for which an author might be paid, but which could just as easily, depending on how widely the work had already circulated, be gotten by other means. For example, one printer who published a copy of Hamlet may have hired someone with a good memory (likely an actor who had had some small parts) to dictate it, as a way of getting a copy. (The resulting Q1 soliloquy is hilarious)

Eventually this system of copyright -- which the crown had liked, for censorship purposes, and which publishers had liked for monopoly purposes -- fell apart and was replaced with a new system of copyright in which rights did vest in the author.

Both are valid copyright laws -- there's nothing about copyright that demands that it must vest in an author to justify being called copyright. That's just an important feature that we've made into a legal requirement since.

It's a bit like early patent laws, which could grant patents to inventors, to people who didn't invent anything but did import the technology to the jurisdiction granting the patent, or just to well-connected people who wanted a monopoly on playing cards or something.

In other words, copyright was not a system of censorship; it was a system that did away with it

Not really. It just separated publishing from censorship. Even today the people that rate films in the UK are the British Board of Film Classification (formerly that C was for Censors) and they do have the power AFAIK to ban films from being publicly shown or sold there. Speech is a lot freer now than in most of the past, but censors of one sort or another still try to control what others can do.

Even authorial copyright is a system of censorship. The judgement of whether to censor is given to the copyright holder, who may exercise it for commercial reasons rather than artistic or social sensibilities. But it's backed by the power of the state and the distinction matters little to those who run afoul of it.

copyright was created for the explicit purpose of preventing publishers from using expensive modern technology to exploit and abuse people!

Setting aside for a moment that publishers frequently hold enough of a copyright to make the decision of whether to wield it or not on their own, without the author getting a say, so what?

If someone sues me in a way that exploits or abuses me, what do I care if the plaintiff is an author or a publisher? You seem to think that authors are he only people we should care about. But many infringers are people too! Copyright should endeavor to promote their interests as well.

Fair use and non comercial use.

Fair use is something that should be more important than any copyright at any time.
Non commercial use is important for sharing and is why some countries allow the downloading of copyright material but not the uploading of it. Once the courts realsie that sharing is caring and that sharing is a human right then copyright can be changed just to affect the people in big business making massive profits from artists creations.